How much medical evidence do employers need? (Legal view)

Board criticizes hospital and union for creating a stalemate

For more than 30 years, Mary Anne Schram worked full time as a registered nurse for the Capital Health Authority in Edmonton –– most recently in a 60-bed neo-natal intensive care unit (NICU). She suffered from the usual physical wear and tear that befall the middle-aged: arthritis in her back, knees and neck and high blood pressure. She was able to manage her symptoms by resting judiciously. Her manager called her “an asset to the NICU with no performance concerns of any kind.”

But in 2005 her full-time career ground to an unexpected halt. Management decided to change the shift cycle in the NICU. A majority of the nurses agreed to the change. However, some, including Schram, were concerned for a number of reasons.

Although the change meant more days off in between shifts, it also meant more days in a row at work. There was no longer a day off between the day/night switch, and the weekend work patterns changed as well.

Schram did not want to work in another part of the hospital that still had the shift patterns she was used to, nor did she consider other scheduling options such as an eight-hour shift. What concerned her, since she wanted to stay in her existing position, was being able to rest sufficiently between the shifts she was used to having.

At her request, her family doctor sent a note to Sue Price, her manager, which said only that she had “multiple medical problems which are influenced by her work.” In following the usual procedure by sending the note to the Occupational Health, Safety and Wellness Department, Price added a note of her own saying she thought the accommodation was “doable from our perspective.”

That might have been the end of the matter, but complications ensued. Schram filed a grievance in which she claimed the employer was “demanding access to my personal medical information including diagnosis and failing to accommodate my disability.” Three months after the new rotation schedule was introduced, Schram had quit and had taken an early retirement. However, several weeks later, she was hired back as a casual doing the same job in the same department at the same hospital. She had taken an early retirement to avoid the problematic shift work. What happened to her “doable” request for accommodation?

At issue was the nature of the medical evidence required to prove the need for accommodation. How much information was required in order to balance the privacy needs of Schram with the employer’s need for facts about the nature of the alleged disability? Both the collective agreement and human rights legislation guaranteed the rights of the disabled to be free from discrimination. Was it necessary, for example, to disclose the diagnosis to prove the need for accommodation of a disability? This issue had become a major source of dispute between the United Nurses of Alberta, the union representing Schram, and the various provincial health regions, including management at the Royal Alexandra Hospital where she worked.

The union presented two arguments in favour of upholding the grievance. First it held the medical evidence presented first by Schram’s family doctor and then by an occupational health specialist was sufficient. According to the union, the medical consultant whose opinion the hospital had subsequently requested had incorrectly applied an insurance claim model to the situation. He had asked for far more information than what was properly required where, in the union’s words, only “minimal accommodation” was being asked for. Next, the union argued management had dropped the ball procedurally and mishandled Schram’s request by giving incorrect advice and not handling the file proactively.

Management argued it required further medical information first to determine if Schram had a disability, next to determine how best to accommodate the disability (if it were proven) and third, to have some idea of how long the situation might go on. It noted the union and Schram were also guilty of not vigorously following up requests for meetings. But, most importantly, management’s hands were “effectively tied when (Schram) refused to provide medical consent.” Such consent was needed, said management, in order to gather sufficient medical evidence to prove the disability existed and then to determine the best way to accommodate it. Neither of the doctors’ reports that Schram submitted gave evidence based on any diagnostic tests.

A majority of members of the arbitration board denied the grievance. Schram provided too little information about her medical situation, and the hospital was justified in asking for more. Not only that, but it did not find the hospital alone should shoulder the blame for single-handedly mismanaging the adjudication process although its staff could have been more helpful in getting the paperwork done adequately and on time.

However, the board did not let the matter end there. All members of the board agreed this was “a most unfortunate case” where the parties locked themselves into positions and refused to resolve the stalemate. As a result, a long-serving employee with a “blemish-free record, working in a highly specialized unit” felt she had no choice but to retire when faced with difficult working conditions. The board noted that all parties could have been more proactive, flexible and creative in solving the problem of her accommodation. Schram should have asked more questions of both her union and her employer. Both the union and the hospital should have been more specific in their requests. All parties should have been more persistent in requesting meetings to discuss the situation. Schram didn’t have to have fallen between the cracks.

To help in future situations of this kind, the board listed the questions management could reasonably ask when determining eligibility for accommodation:

•What is the nature of illness? (The diagnosis itself is not required.)

•Is the illness permanent or temporary?

•What are the restriction and limitations?

•How were these medical conclusions reached? Were objective tests performed or was most information self-reported?

•What treatment relative to the accommodation issue was undergone or what medication was prescribed?

For more information: Capital Health Authority (Royal Alexandra) and United Nurses of Alberta, Local 33, an Alberta Arbitration Board decision; Allen Ponak – Chair and Nicole Bownes and Pemme Cunliffe, Members, dated October 11, 2006.

Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, newsletters that report on collective bargaining and other issues in labour relations. She can be reached at (416) 298-5141 ext. 2617 or [email protected].

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